Michael Burke

Orrick assessment of proposed CFIUS rules. A leap in the progression of CFIUS from merely a transaction-screening body to a more conventional regulatory and enforcement body. https://lnkd.in/dARuwJVr

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Current and future U.S. defense contractors, and entities interested in acquiring these contractors, should prepare for increased regulatory scrutiny of mergers and acquisitions (M&A) transactions. Congress is signaling that it will push for more oversight of M&A activities that specifically involve and affect the defense industrial base (DIB). Read Goodwin's latest client alert below.

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The U.S. government has proposed a new rule that prohibits U.S. person's from #investing in #technology companies in #China (including advanced integrated circuit design and equipment, #supercomputers, #quantum, and #AI systems). #outboundinvestment #dlapiper

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The USPTO leadership issued a decision (a rejection), dated May 21, 2024, in an ARP, attached, in the Xencor case remanded from the Federal Circuit and now styled as In re Chamberlain. I focus only on MPF claim 9 in this post and not on Jepson claim 8. The PTO maintained the Board's written description rejection of claim 9 on the failure of "treating a patient" to possess written description support, found claim 9 to be a Section 112(6) claim (pre-AIA), ruled that written description and definiteness do not require the Specification to describe equivalents of 5G1.1 to meet the definiteness or written description requirements; did not maintain the Board's indefiniteness rejection of claim 9; ruled in Xencor's favor on non-statutory obviousness-type double patenting of claim 9 over claims 1-5 of the '818 patent and Schwaeble; and on obviousness-type double patenting of claim 9 over claim 1 of the '543 patent and Schwaeble. There is much to unpack here, but basically, as it appeared to me that Xencor won on every issue except written description for "treating a patient," it seems to me that the following revised MPF claim 9 just might be successful: 9      An anti-C5 antibody comprising: a) means for binding human C5 protein; and b) only one modified (see note 12 of ARP) Fc domain comprising amino acid substitutions M428L/N434S as compared to a human Fe polypeptide, wherein numbering is according to the EU index of Kabat, wherein said anti-C5 antibody with said amino acid substitutions has increased in vivo half-life as compared to said antibody without said substitutions. But, in view of note 16 of the opinion at p. 40; it might be advisable to drop the two wherein clauses and rewrite b) as means for increasing the in vivo half-life of the antibody and link that "b) means for" to "only one modified (see note)12 of ARP) Fc domain comprising amino acid substitutions M428L/N434S. I appreciated input tonight on this claim from Saki Tohyama of The Marbury Law Group, PLLC Law Group and will present tomorrow on MPF for Strafford with noted experts Joanna T. Brougher of BioPharma Law Group PLLC and Michelle O'Brien of the The Marbury Law Group, PLLC Not legal advice; no attorney client relationship, for information and educational purposes only, does not reflect the past, present, or future views of clients of The Marbury Law Group, PLLC and liability is disclaimed for any error or omission.

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It is expected MOFCOM may release an FAQ regarding U.S. military end user and end use in the near future as a detail gudiance for the implementation of the latest export control measure taken on Dec 3.

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Trade secret misappropriation knows no borders. With the growing use of trade secrets in today's highly digitized landscape—where cross-border operations are the norm—disputes between U.S. and Chinese entities on trade secret misappropriations are rising. In this article for Law360, my Jones Day colleagues Andrea Jeffries, Haifeng Huang, and Ariana Wilner offer insights on the growing number of trade secret disputes between U.S. and Chinese companies. Read the article here: https://ow.ly/95hR50TQ2sT #tradesecrets #intellectualproperty #IP

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The U.S. Court of Appeals for the D.C. Circuit has issued a ruling that further develops the law around the expropriation exception to sovereign immunity in the U.S. It's an important decision for cross-border investors facing political risk in an area of sovereign immunity law that has not historically been well-understood. Our team has prepared an alert on the decision, and hope you find it useful and informative. #dlapiper #fsia #internationallitigation https://lnkd.in/ezZCYWJ3

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Recent U.S. Customs and Border Protection (CBP) actions to curtail use of the de minimis entry program (e.g., ACE Entry Type 86 test program) are part of a growing trend to restrict programs that were designed to facilitate and streamline imports of low-value shipments. Among those hardest hit – Chinese e-commerce platforms that were making significant inroads, and expanding rapidly, in the U.S. market. In a sign that the push to restrict use of the de minimis entry program will continue, Representatives John Moolenaar (R-MI), Ashley Hinson (R-IA) and Raja Krishnamoorthi (D-IL) recently introduced a bipartisan bill, the “Protecting American Industry and Labor from International Trade Crimes Act” which, among its many provisions, seeks to protect the U.S. textile and apparel industry from an “onslaught of imported textile and apparel products being imported through the de minimis trade loophole.” Senate Finance Committee Chair Ron Wyden (D-OR) is also preparing a bill to reform the de minimis system by barring certain products, “including textiles and apparel, and imposing a fee to use the program.” My colleague Ju (Lindsay) Zhu in Shanghai and I recently drafted a client alert in Chinese that outlines the impact of the recent crackdown on the de minimis entry program. #TeamSPB #CBP #Customs #supplychain #ecommerce

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Check out the blog post from my colleagues Kerry Contini, Lise Test and Rob O'Brien about the new US export controls and sanctions announced on the eve of Ukraine's Independence Day in 2024 aimed at disrupting the networks supporting Russia's military actions in Ukraine. These measures include the addition of 123 entities to the Entity List, expansion of the MEU FDP Rule, controls on CNC machine tool software exports to Belarus and Russia, and guidance on contractual clauses to prevent reexports to Russia. https://lnkd.in/e_R8nrQh

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I had the opportunity to discuss the Biden Administration's recent actions on China with Law360's Jennifer Doherty and share my insights on this timely trade development. Check out the article to learn more about how the effect of new China duties hinges on the PRC response. #BidenAdministration #China #TradeDevelopment #Law360

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Important read!

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CFIUS's latest Annual Report to Congress highlights an uptick in penalties and an increased use of enforcement tools relating to national security-focused transaction reviews. Through this report, public remarks by senior officials, private sector outreach, and significant recent uses of and proposed enhancements to its penalty authorities, CFIUS has signaled an enhanced focus on monitoring and enforcement efforts. Parties should consider these trends, and CFIUS's augmented statutory authorities and policy role, in connection with transaction risk assessments and deal planning. Read Jones Day's Alert, which provides a summary of the CFIUS annual report. https://ow.ly/pwGP50T1ze6 #CFIUS #nationalsecurity #fdi

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U.S courts are generally receptive to applications to enforce arbitration awards, but these applications are not without challenges. Establishing subject matter jurisdiction in an action against a sovereign or government instrumentality that is protected by its immunity from suit can prove a significant hurdle. In this article, my colleagues Brian Hill, Maame Esi Austin and I explore the latest ruling in Amaplat Mauritius Ltd. v. Zimbabwe Mining Dev. Corp., a case brought against the Republic of Zimbabwe, the Chief Commissioner of the Zimbabwean Ministry of Mines, and the Zimbabwe Mining Development Corporation. The case reaches US federal district courts after several failed efforts to enforce the judgment in Zambia. The DC District Court's analysis of the facts underlying the alter ego relationship in this case provides a roadmap by which one can pierce the veil of immunity and satisfy the requirements of both subject matter and personal jurisdiction, which are the first fundamental steps towards securing recognition of a foreign arbitral award in the U.S. Happy reading! (7 min.) #arbitrationawards #arbitralawards #internationalarbitration #NYConvention #sovereignimmunity #FSIA

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Want to know what's happened in space law and policy in the last couple of weeks? The only read you need is here to take you into the weekend. #spacelaw #spacebusiness

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Looking forward to moderating this important discussion at the Global Semiconductor Alliance's 2024 Tech Summit with semiconductor executives regarding the challenges posed by the industry's talent shortage and potential solutions. Suzanne Plummer AMD Balaji Baktha Ventana Micro Systems #semiconductors #talentmanagement #immigration #mobility #startups #Fragomensemiconductors #semiconductorindustry #technology

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FAILURE TO PROVIDE PRIVILEGE LOG LEADS TO SANCTIONS Failing to provide a privilege log can lead to serious consequences for legal practitioners. In a recent case, Coker, et al. v. Goldberg & Associates P.C., et al., 2024 WL 263121 (S.D.N.Y. 2024), the failure to produce a privilege log for responsive documents resulted in a waiver of privilege and sanctions under Rule 37(b)(2). This serves as an important reminder to all legal professionals to ensure that they are complying with all necessary procedures and protocols, and to avoid any missteps that could result in unwanted consequences. Stay vigilant and stay on top of your game.

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